R v Iyer, 2016 ABQB 485

Court of Queen’s Bench of Alberta Citation: R v Iyer, 2016 ABQB 485 Date: 20160829 Docket: 120555024Q1 Registry: Edmonton Between: Her Majesty the Queen Crown - and - Vimal Chandra Iyer Accused/Applicant Corrected judgment: A corrigendum was issued on October 19, 2016; the corrections have been made to the text and the corrigendum is appended to this judgment. _______________________________________________________ Reasons for Judgment of the Honourable Madam Justice A.B.

Moen _______________________________________________________ Introduction [ 1 ] On August 10, 2016, Vimal Iyer was convicted by a jury of 33 counts on an indictment. The Crown immediately made an application for Mr. Iyer to be remanded into custody. He had been on judicial interim release since his arrest in 2012. Mr. Iyer asked late in the day on August 10 that he obtain legal counsel to assist him with the matter of his remand and his sentencing. He was of the view at the time that he could get a lawyer immediately. However, this did not happen immediately and he has been in custody since that day.

Today he has legal counsel and the Crown has made its formal application to revoke his judicial interim release.

Discussion [2] The Criminal Code of Canada provides that judicial interim release continues after a finding of guilt until a sentence hasbeen imposed: 523.

(1) Where an accused, in respect of an offence with which he is charged, has not been taken into custody or has been released fromcustody under or by virtue of any provision of this Part, the appearance notice, promise to appear, summons, undertaking or recognizanceissued to, given or entered into by the accused continues in force, subject to its terms, ..., ... (

b) in any other case, (

i) until his trial is completed, and (ii) where the accused is, at his trial, determined to be guilty of the offence, until a sentence ... is imposed on the accused unless, at thetime the accused is determined to be guilty, the court, judge or justice orders that the accused be taken into custody pending suchsentence. [emphasis added] [3] Three cases have been cited to me concerning the application of

section 523: R v Darren John Moore, [1993] O.J. No.2992; R. v. Green (ON SC), [2006] O.J. No. 3240; and R. v Shrubsole, [2007] O.J. No. 5309. [4] Moore and Shrubsole found that section 523 (1) gave the trial judge authority to cancel judicial interim release and remandan offender into custody pending sentencing. Green found that section 523 (1) did not give authority to the judge to revoke judicialinterim release pending sentencing. Rather, the judge in that case found that the provisions under subsection 523(2) applied: 523(2) Notwithstanding subsections (1) and (1.1), (

a) the court, judge or justice before which or whom an accused is being tried, at any time, ... may, on cause being shown, vacate any order previously made under this Part for the interim release or detention of the accused andmake any other order provided for in this Part for the detention or release of the accused until his trial is completed that the court, judgeor justice considers to be warranted. [emphasis added] [5] These provisions are, frankly, confusing. Partly the issue revolves around when the trial is complete.

Section 523 (1)(b)suggests by using the conjunctive “and” that any judicial interim release in circumstances such as the case before me that are in place atthe time the trial is completed remain in place until the offender has been sentenced. To me this means that the trial is completed at thetime that the accused is convicted, that is that a jury in this case has found him guilty of offenses.

This provision suggests that sentencingis a separate consideration. [6] Green suggests that the only authority to be found for a judge to revoke judicial interim release after a finding of guilt andpending sentencing is found in that subsection. He finds that it is subsection 523(2)(

a) that confers the power on a trial judge to make theorder referred to in section 523(1)(b): para 8. [7] I know that the language in subsection 523(2) says that the judge has jurisdiction to vacate any order previously made forjudicial interim release until the accused’s trial is completed. This would suggest by its language that the provisions found in subsection523(2) do not apply to the circumstances before me. The trial would have been completed when the jury rendered its verdict. [8] If I were to follow Moore, I could make an order revoking judicial interim release and remanding Mr.

Iyer to custodywithout more. If I were to follow Green, I would need to find my authority in subsection 523(2). Therefore, I will follow the line ofreasoning in Green. That is, I will take my authority from subsection 523(2). [9] I have an application by the Crown to revoke Mr. Iyer’s judicial interim release pending sentencing. It is my view that I mayhear this application and that I have the authority pursuant to the Criminal Code to hear the application and to make a decision as towhether Mr. Iyer’s judicial interim release will continue. However, in order for me to revoke Mr.

Iyer’s judicial interim release, theCrown must show cause. [10] Subsection 523(3) provides that sections 517, 518 and 519 apply to any consideration concerning judicial interim releaseunder subsection 523(2). Those sections are procedural and provide that the Crown must make an application in order for the court toconsider revoking judicial interim release. Those sections also refer to

section 515, which contains the judicial interim release provisionsunder the Criminal Code. It appears that I must use the criteria under

section 515 when considering judicial interim release in the contextof a conviction pending sentencing. [11] My consideration of the Crown’s application must take into account the three grounds suggested in subsection 515(10). [12] First, it appears from the language of subsection 523(1) that there is a presumption that judicial interim release will remain ineffect until sentencing. To depart from this direction of Parliament I must find that the Crown has shown cause.

In fact, Green suggeststhat a departure from this legislative direction will be the exception and certainly only where the Crown has shown cause: para 11. [13] Defence counsel argues that Parliament has directed only one class of offenses (such as murder, treason, etc.) willautomatically have judicial interim release revoked when there is a finding of guilt. Therefore, there must be more than a finding of guiltto revoke judicial interim release in any other circumstance.

[ 14 ] The Crown argues that judicial interim release should be revoked for two reasons: the possibility of flight and the maintenance of confidence in the administration of justice. I shall deal with each of these separately. [ 15 ] First, with respect to the flight risk, the Defence points out that Mr. Iyer has been on judicial interim release since approximately early 2012. He has complied without exception to his bail conditions. It is now 2016. For four years he has not taken advantage of his release to flee this country. He has attended every day of trial and has mostly been on time.

He has a family here which includes two boys, 13 and 17 and a wife. The boys were born in Canada. [ 16 ] The Crown points out that Mr. Iyer has family and business contacts in several countries throughout the world and that he originated from Fiji. His passport from Fiji has been seized and held by the Court and has lapsed. Further, the Crown argues, Mr. Iyer has now been convicted of 33 charges and faces a lengthy jail term. Up until now, he had the benefit of the presumption of innocence. Now, he does not.

The Crown argues that his incentive to flee has increased considerably. [ 17 ] In Green , the court pointed out at paragraph 13 that revocation of bail “can have a significantly detrimental impact on the offender’s ability to prepare for sentencing.” Mr. Whitling has pointed out that preparation for sentencing will take considerable time on his part because he was not involved in the trial and that having his client readily available will ensure that he will have that time. I have set the sentencing for November 10 which gives Mr. Whitling a tight timeframe. Further, Mr.

Iyer in his submissions after he had been found guilty asked for time to be able to put his affairs in order. The court in Green suggested that a court can release an offender by varying the terms of judicial interim release to satisfy the concerns of the Crown. [ 18 ] I find that there is an increased risk of Mr. Iyer fleeing the country given that he now faces a certain jail term. However, I also find that this is not enough in and of itself for me to revoke his bail. For example, it would be beneficial if I were able to order that he wear an electronic bracelet.

However I am advised by the Crown that it no longer provides such a service. I will not direct an accused to pay for such a service. [ 19 ] The second reason that the Crown has given for revoking Mr. Iyer’s bail is the third ground set out in section 515(10) of the Criminal Code : 515(10)(

c) if the detention is necessary to maintain confidence in the administration of justice, having regard to all the circumstances, including (

i) the apparent strength of the prosecution’s case, (ii) the gravity of the offence, (iii) the circumstances surrounding the commission of the offence, including whether a firearm was used, and (iv) the fact that the accused is liable, on conviction, for a potentially lengthy term of imprisonment or, in the case of an offence that involves, or whose subject-matter is, a firearm, a minimum punishment of imprisonment for a term of three years or more. [ 20 ] This

section of the Criminal Code has recently been the subject of a decision of the Supreme Court of Canada, R v St-Cloud , 2015 SCC 27 , which provides that this subsection is not limited to exceptional circumstances. However, I must be satisfied that the detention of Mr. Iyer pending his sentencing is justified to maintain confidence in the administration of justice. To do so I must consider four things as set out above. [ 21 ] With respect to the apparent strength of the prosecution’s case, clearly their case is strong, there has been a conviction on 33 counts of fraud.

The presumption of innocence no longer applies. [ 22 ] With respect to the gravity of the offense, which the Supreme Court of Canada explains is the objective gravity of the offense, that is the maximum sentence that can be given under the provisions of the Criminal Code . In this case, that is 14 years. [ 23 ] The third consideration is the circumstances surrounding the commission of the offense.

Here, the Supreme Court of Canada suggests a number of factors such as that the offense was violent, heinous or hateful, that it was committed in the context involving domestic violence, a criminal gang or a terrorist organization or that the victim was a vulnerable person. The example given for that latter situation was a child or an elderly person or person with a disability. In the case before us, there were very few elderly people who invested their funds. Mostly, they were young adults or middle-age adults who did so.

They certainly lost money and most often had borrowed funds or increased mortgages or used up RRSPs. In this context I may also consider the aggravating or mitigating factors that are considered for sentencing purposes. Those have not been thoroughly canvassed with me yet. [ 24 ] The final or fourth consideration is that the accused is liable for a potentially lengthy term of imprisonment. I do not know what the Crown will be asking in this case. However, there are 33 counts on the indictment for which he has been found guilty by a jury. The maximum sentence as set out above is 14 years.

In circumstances such as this I would think that the Crown will ask for many years of imprisonment. [ 25 ] The Supreme Court of Canada in St.-Cloud, supra, has pointed out that the list of circumstances I have just reviewed is not exhaustive and that I must take everything into account: paras 66 to 69. [ 26 ] Finally, the Supreme Court of Canada states that the entitlement of an accused to release is based on the presumption of innocence requiring a justice to ensure that interim detention is truly justified. Of course, in this case there is no more a presumption of innocence and my release of Mr.

Iyer will not be the release of a person who is presumed to be innocent. He has been found guilty. [ 27 ] In considering these four factors, there is nothing new to consider for release, except that he has been convicted of 33 counts of fraud. The other factors have not changed.

[ 28 ] In Green , Justice Ducharme said the following at paragraph 14: The important question of public confidence in the administration of justice must be assessed from the perspective of a public that is both informed about our system of bail and the facts of the particular case. This includes an appreciation of the fact that the offender, although convicted, has already been granted judicial interim release and has complied with the terms of that release, usually for a considerable period of time.

It is difficult to understand how public confidence in the administration of justice will be undermined by the continued release of an offender who has demonstrated that he or she is not a threat to public safety and does not pose a risk of flight nor interference with the administration of justice. [ 29 ] Justice Ducharme made this comment in the context of sentencing which he said rarely exceeded two months. Here, I have set sentencing for 2 ½ months away on November 10. [ 30 ] The Crown has not shown me, that is, shown cause, that anything other than a finding of guilt has changed. To revoke Mr.

Iyer’s bail now would fly in the face of the provisions of the Criminal Code of Canada at section 523(1) where Parliament specified that bail continue unless the guilty verdict was for a class of crimes set out in

section 469 (murder, treason, etc.) [ 31 ] In considering all of these factors, I am going to follow the reasoning of Justice Ducharme and continue Mr. Iyer’s release with some changes to the conditions that I will set out after a discussion with counsel. Heard on the 29 th day of August, 2016. Dated at the City of Edmonton, Alberta this 29 th day of August, 2016. A.B. Moen J.C.Q.B.A. Appearances: Mr. Damian Rogers and Mr. Robert Sera for the Crown Mr.

Nathan Whitling for the Accused/Applicant _______________________________________________________ Corrigendum of the Reasons for Judgment of the Honourable Madam Justice A.B. Moen _______________________________________________________ The following changes were made to the judgment issued 20160829:

Page 1: • Para 1 – First line changed from “August 2016” to add the date “August 10, 2016”; • Para 1 – Third line changed from “arrest in 2011”to “arrest in 2012”; • Para 1 – Third line words added ... “late in the day on August 10 ...”; • Para 2 – Second line words deleted “...unless the crime is covered under

section 469”. Page 2: • Para 4 – Second line – the word “or” deleted; • Para 4 – words italicized in the quote from s. 523(2) to add emphasis – and the words “[emphasis added]” added to the end of the

section quoted. Page 3: • Para 8 – The sentence after subsection 523(2) deleted. Last sentence remained the same; • Para 8 – Last sentence added “That is ...subsection 523(2)”; • Para 9 – Last sentence added “However, in order for me ...show cause” added; • Para 10 – Last sentence – the word “judges” changed to “I must”; • Para 11 – First sentence – the words “It appears that” deleted; • Para 13 – First line – the words “given that” deleted; • Para 13 – Second line – the words “...treason, etc.” added; • Para 13 – Third line – the sentence ended after “guilty”.

New para starts with “Therefore, ...”; • Para 15 – Second line – the year “2011 or ...” deleted. Page 4: • Para 19 – The word “grounds” changed to “ground”; • Para 20 – criminal code changed to Criminal Code ; • Para 23 – First line – the words “... surround during” changed to “... surrounding”; • Para 26 – Third line – the words changed from “there is no more presumption” to “there is no more a presumption”; • Para 27 – Has been added; • Para 28 – In the quote from Green , the first word “the” changed to a capital T, “The”; • Para 30 – has been added.

Page 5: • Para 22 – The words criminal code changed to Criminal Code ; • Para 23 – Sixth line – the word “a” deleted; • Para 24 – Third line – “she” has been changed to “he”; • Para 25 – First line – “in St-Cloud , supra , added. Please replace your copy of the judgment with this copy.